No.

144, Original

In the Supreme Court of the United States

STATES OF NEBRASKA AND OKLAHOMA, PLAINTIFFS
v.
STATE OF COLORADO
ON MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

DONALD B. VERRILLI, JR.

Solicitor General
Counsel of Record
BENJAMIN C. MIZER
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JOHN F. BASH
Assistant to the Solicitor
General
DOUGLAS N. LETTER
MARK B. STERN
ALISA B. KLEIN
SONIA K. MCNEIL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

TABLE OF CONTENTS

Page
Statement.................................................................................. 1
Discussion ...................................................................................... 8
Conclusion ............................................................................... 24
TABLE OF AUTHORITIES

Cases:
Alabama v. Arizona, 291 U.S. 286 (1934) ........................... 19
Allen v. Wright, 468 U.S. 737 (1984) .................................... 17
Arizona v. California, 298 U.S. 558 (1936) ......................... 23
Arizona v. New Mexico, 425 U.S. 794 (1976)...................... 21
Arizona v. United States, 132 S. Ct. 2492 (2012) ............... 22
Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378 (2015) ......................................................... 20
California v. Arizona, 440 U.S. 59 (1979) ........................... 23
Douglas v. Independent Living Ctr., 132 S. Ct. 1204
(2012) .................................................................................... 20
Gonzales v. Raich, 545 U.S. 1 (2005) ..................................... 1
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ................ 9
Kansas v. Colorado, 185 U.S. 125 (1902)............................. 22
Kansas v. Nebraska, 135 S. Ct. 1042 (2015) ....................... 20
Louisiana v. Texas, 176 U.S. 1 (1900) ....................... 9, 12, 13
Maryland v. Louisiana, 451 U.S. 725 (1981) ... 11, 16, 18, 21
Massachusetts v. Missouri, 308 U.S. 1 (1939).................... 14
Mississippi v. Louisiana, 506 U.S. 73 (1992)..... 9, 10, 16, 21
Missouri v. Illinois, 180 U.S. 208 (1901) ................ 10, 11, 13
New York v. New Jersey, 256 U.S. 296 (1921) .............. 11, 19
Ohio v. Wyandotte Chems. Corp., 401 U.S. 493
(1971) .................................................................................... 16
Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363
(1977) .................................................................................... 20
(I)

II
CasesContinued:

Page

Pennsylvania v. New Jersey, 426 U.S. 660 (1976) ....... 13, 14

Pennsylvania v. West Virginia, 262 U.S. 553 (1923) ........ 11
Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26 (1976) ............................................................... 17
Texas v. New Mexico, 462 U.S. 554 (1983)...................... 9, 10
United States v. Oakland Cannabis Buyers Coop.,
532 U.S. 483 (2001)................................................................ 2
Wyoming v. Oklahoma, 502 U.S. 437 (1992) .................. 9, 11
Constitutions and statutes:
U.S. Const.:
Art. I, 8, Cl. 3 (Commerce Clause) ............................. 11
Art. III ................................................... 8, 13, 16, 17, 21, 22
2, Cl. 2 ........................................................................ 8
Colo. Const. Art. XVIII, sec. 16 (Amendment 64) ............... 4
(3) ..................................................................................... 4
(3)(a) ........................................................................... 4, 19
(3)(c) ................................................................................. 4
(3)(d)................................................................................. 4
(4) ............................................................................. 4, 7, 8
(4)(a)-(e) ........................................................................... 4
(4)(b)-(e) ........................................................................... 4
(5) ............................................................................. 4, 7, 8
(5)(a)-(c) ........................................................................... 4
(5)(d)................................................................................. 5
(5)(f) ................................................................................. 5
(7) ..................................................................................... 5
(8) ............................................................................... 5, 17
Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 538,
128 Stat. 2217 ........................................................................ 7

III
StatutesContinued:

Page

Controlled Substances Act, 21 U.S.C. 801 et. seq ................. 1

21 U.S.C. 801(2) ................................................................. 1
21 U.S.C. 801(5) ................................................................. 1
21 U.S.C. 811(a) ................................................................. 2
21 U.S.C. 811(d) ................................................................. 2
21 U.S.C. 812 ...................................................................... 2
21 U.S.C. 812(b)(1) ............................................................ 2
21 U.S.C. 812(c) ................................................................. 2
21 U.S.C. 841 et seq. .......................................................... 2
21 U.S.C. 841-846............................................................... 2
21 U.S.C. 882(a) ................................................................. 2
21 U.S.C. 885(d) ................................................................. 3
21 U.S.C. 903 ................................................................ 3, 22
Federal Aviation Administration Authorization Act
of 1994, Pub. L. No. 103-305, Tit. VI, 601(a)(1),
108 Stat. 1605 ...................................................................... 15
49 U.S.C. 14501(c)(1) ....................................................... 15
Judiciary Act of 1789, ch. 20, 13, 1 Stat. 80 ........................ 9
Natural Gas Act, ch. 556, 52 Stat. 821 (15 U.S.C. 717
et seq.)................................................................................... 11
28 U.S.C. 1251(a) ..................................................................... 9
Colo. Rev. Stat. (2014):
18-18-401 et seq. .............................................................. 4
18-18-433.......................................................................... 4
Fed. R. Civ. P. 19(a) .............................................................. 23
Miscellaneous:
Marijuana Enforcement Div., Colo. Dept of Revenue, Annual Update (Feb. 27, 2015),
https://www.colorado.gov/pacific/sites/default/
files/2014%20MED%20Annual%20Report_1.pdf ............. 5

IV
MiscellaneousContinued:

Page

Memorandum from Deputy Attorney General David

W. Ogden to Selected U.S. Attorneys (Oct. 19,
2009), http://www.justice.gov/sites/default/files/opa
/legacy/2009/10/19/medical-marijuana.pdf ......................... 3
Memorandum from Deputy Attorney General James
M. Cole to U.S. Attorneys (June 29, 2011),
http://www.justice.gov/sites/default/files/oip/
legacy/2014/07/23/dag-guidance-2011-for-medicalmarijuana-use.pdf ................................................................. 3
Memorandum from Deputy Attorney General James
M. Cole to U.S. Attorneys (Aug. 29, 2013),
http://www.justice.gov/iso/opa/resources/
3052013829132756857467.pdf ...................................... 5, 6, 7
Restatement (Second) of Torts:
Vol. 2 (1965) ...................................................................... 20
Vol. 4 (1979) ...................................................................... 20
Stephen M. Shapiro et al., Supreme Court Practice
(10th ed. 2013) ........................................................... 9, 10, 11

In the Supreme Court of the United States

No. 144, Original
STATES OF NEBRASKA AND OKLAHOMA, PLAINTIFFS
v.
STATE OF COLORADO
ON MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the order of this

Court inviting the Solicitor General to express the
views of the United States.
STATEMENT

1. a. The Controlled Substances Act (CSA), 21

U.S.C. 801 et seq., establishes a comprehensive regime to combat the international and interstate traffic
in illicit drugs. Gonzales v. Raich, 545 U.S. 1, 12
(2005). In enacting the CSA, Congress found that the
illegal importation, manufacture, distribution, and
possession and improper use of controlled substances
have a substantial and detrimental effect on the health
and general welfare of the American people. 21
U.S.C. 801(2). Congress also determined that it is
not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate. 21 U.S.C. 801(5).
The CSAs prohibitions and requirements therefore
(1)

2
govern both interstate and intrastate markets in controlled substances.
The CSA places controlled substances into five
schedules, with the initial placement subject to modification by the Attorney General if she determines, in
consultation with the Secretary of Health and Human
Services, that a change is warranted in light of medical, scientific, and other statutory factors. 21 U.S.C.
811(a) and (d), 812. Congress classified marijuana as a
Schedule I drug. 21 U.S.C. 812(c), Schedule I(c)(10).
Schedule I drugs have a high potential for abuse and
lack any accepted medical use. 21 U.S.C. 812(b)(1).
Because of marijuanas Schedule I classification, its
manufacture, distribution, dispensing, or possession is
generally prohibited, and a person who commits those
acts (or attempts or conspires to do so) commits a
federal criminal offense. 21 U.S.C. 841-846.
The Attorney General can enforce the CSA through
criminal prosecutions or through civil suits for injunctive relief. See 21 U.S.C. 841 et seq., 882(a); see, e.g.,
United States v. Oakland Cannabis Buyers Coop.,
532 U.S. 483, 486-487 (2001). The CSA does not contain a private right of action to enforce its prohibitions.
b. States have also enacted laws regulating marijuana and other controlled substances. The CSA
provides that [n]o provision of this subchapter shall
be construed as indicating an intent on the part of the
Congress to occupy the field in which that provision
operates, including criminal penalties, to the exclusion
of any State law on the same subject matter which
would otherwise be within the authority of the State,
unless there is a positive conflict between that provision of this subchapter and that State law so that the

3
two cannot consistently stand together. 21 U.S.C.
903. The CSA further provides that state and local
officers lawfully engaged in the enforcement of any
law or municipal ordinance relating to controlled substances are generally immune from federal civil and
criminal liability. 21 U.S.C. 885(d).
2. In recent years, some States, including Colorado, have amended their laws to permit the distribution
and sale of marijuana for assertedly medical purposes.
In 2009, Deputy Attorney General Ogden issued a
memorandum addressing federal prosecution of CSA
violations in those States. See Memorandum from
Deputy Attorney General David W. Ogden to Selected
U.S. Attorneys 1-2 (Oct. 19, 2009). 1 The memorandum
affirmed that [t]he prosecution of significant traffickers of illegal drugs, including marijuana, and the
disruption of illegal drug manufacturing and trafficking networks remain important enforcement priorities for the United States. Id. at 1. The memorandum, however, also instructed U.S. Attorneys that
pursuit of these priorities should not focus federal
resources in your States on individuals whose actions
are in clear and unambiguous compliance with existing
state laws providing for the medical use of marijuana.
Id. at 1-2. In 2011, Deputy Attorney General Cole
issued a second memorandum clarifying that the 2009
memorandum was never intended to shield activities
such as large-scale, privately-operated industrial
marijuana cultivation centers with planned cultivation of tens of thousands of cannabis plants from
prosecution under the CSA, even where those activities purport to comply with state law. Memorandum
1

http://www.justice.gov/sites/default/files/opa/legacy/2009/10/19/
medical-marijuana.pdf.

4
from Deputy Attorney General James M. Cole to U.S.
Attorneys 1-2 (June 29, 2011). 2
3. In 2012, Colorado voters adopted Amendment 64
to the Colorado Constitution to legalize and regulate
the recreational use of marijuana. See Colo. Const.
Art. XVIII, 16 (Amendment 64). Section 3 of
Amendment 64 exempts from Colorados criminal
prohibitions persons aged twenty-one or older who
consume marijuana in non-public areas in a manner
that does not endanger others, or who buy, possess,
use, transport, or transfer without remuneration one
ounce or less of marijuana. 3(a), (c) and (d); see
Colo. Rev. Stat. 18-18-433 (2014); see generally Colo.
Rev. Stat. 18-18-401 et seq. (2014).
Amendment 64 establishes a scheme of licensing,
regulation, and taxation for the sale of marijuana.
Section 4 exempts from Colorados criminal prohibitions, in specified circumstances, persons who manufacture, possess, display, transport, buy, or sell marijuana, marijuana products, or marijuana accessories.
4(a)-(e). Those exemptions generally apply only if
the person conducting the activities * * * has obtained a current, valid license for the relevant activity or is acting in his or her capacity as an owner,
employee, or agent of a licensed store or facility. Id.
4(b)-(e). Section 5 directs the Colorado Department
of Revenue to promulgate licensing procedures;
standards for marijuana production, display, advertising, and labeling; and rules to prevent the sale or
diversion of marijuana and marijuana products to
persons under the age of twenty-one. 5(a)-(c).
Section 5 also requires the Colorado General Assem2

http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/
dag-guidance-2011-for-medical-marijuana-use.pdf.

5
bly to enact an excise tax for sales of marijuana from
cultivation facilities to manufacturing facilities and
retail stores (other than medical-marijuana centers).
5(d).
Amendment 64 permits localities to prohibit the
operation of recreational marijuana facilities entirely.
5(f). It does not change Colorados preexisting
medical-marijuana provisions, which permit similar
prohibitions and are codified in a different section of
the Constitution and in a statutory code.
7.
Amendment 64 provides that each of its provisions is
severable. 8.
Colorado permitted retail marijuana businesses to
begin operating on January 1, 2014, and its regulatory
scheme was fully implemented in its current form by
October 30, 2014. Compl. 40. As of December 31,
2014, out of 321 reporting localities, 67 permitted both
medical and recreational marijuana facilities; 21 permitted only medical facilities; 5 permitted only recreational facilities; and 228 permitted neither medical nor
recreational facilities. See Marijuana Enforcement
Div., Colo. Dept of Revenue, Annual Update 6 (Feb.
27, 2015). 3
4. After the adoption of Amendment 64 and a similar initiative in Washington State, Deputy Attorney
General Cole issued a memorandum addressing federal enforcement of the CSA. Memorandum from Deputy Attorney General James M. Cole to U.S. Attorneys
(Aug. 29, 2013) (2013 Cole Memorandum). 4 That
memorandum explained that the Department of Jus3

https://www.colorado.gov/pacific/sites/default/files/2014%20MED
%20Annual%20Report_1.pdf.
4
http://www.justice.gov/iso/opa/resources/3052013829132756857
467.pdf.

6
tice is committed to using its limited investigative
and prosecutorial resources to address the most significant threats in the most effective, consistent, and
rational way. Id. at 1. To that end, the memorandum
stated that U.S. Attorneys should focus their enforcement resources and efforts in all States on conduct relating to any of eight particularly important
federal enforcement priorities, regardless of state
law.
Id. at 1-2.
Those priorities include
[p]reventing the diversion of marijuana from States
where it is legal under state law in some form to other
States; [p]reventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and
cartels; and [p]reventing the distribution of marijuana to minors. Id. at 1-2. Outside of these enforcement priorities, the memorandum explained, the
federal government has traditionally relied on states
and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws. Id. at 2.
The 2013 memorandum further explained that the
Departments guidance rested on the expectation that
state and local governments that have enacted laws
authorizing marijuana-related conduct will implement
strong and effective regulatory and enforcement systems that will address the threat those state laws
could pose to public safety, public health, and other
law enforcement interests. 2013 Cole Memorandum
2. The memorandum noted that the implementation of
strong and effective regulatory and enforcement
systems in jurisdictions that have legalized marijuana in some form may affirmatively address [federal] priorities by, for example, implementing effective
measures to prevent diversion of marijuana outside of

7
the regulated system and to other states. Id. at 3.
But the memorandum advised that [i]f state enforcement efforts are not sufficiently robust to protect
against [such] harms, the federal government may
seek to challenge the regulatory structure itself in
addition to continuing to bring individual enforcement
actions. Ibid.
The 2013 memorandum directed prosecutors to
review marijuana cases on a case-by-case basis and
weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective
state regulatory system. 2013 Cole Memorandum 3.
It cautioned, however, that [n]either the guidance
herein nor any state or local law provides a legal defense to a violation of federal law. Id. at 4. 5
5. In December 2014, Nebraska and Oklahoma
filed a motion in this Court for leave to file a bill of
complaint against Colorado. They seek a declaratory
judgment that Sections 4 and 5 of Amendment 64 are
preempted by the CSA and an injunction against the
implementation of those provisions. Compl. 28-29.
Nebraska and Oklahoma allege that Amendment 64
has increased the flow of marijuana from Colorado
into their territories, requiring them to expend substantial law enforcement, judicial system, and penal
system resources and harming the health and wel5

Section 538 of the Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat. 2217, provides that [n]one of the funds made available in this Act to the
Department of Justice may be used, with respect to [specified
States,] to prevent such States from implementing their own State
laws that authorize the use, distribution, possession, or cultivation
of medical marijuana.

8
fare of their citizens. Compl. 54-65; Br. 11-16.
They argue that that Sections 4 and 5 are preempted
because Colorados affirmative authorization of the
manufacture, possession, and distribution of marijuana presents a substantial obstacle to Congresss objectives under the CSA. Br. 15. But they have made
clear that they do not contend that the CSA requires
Colorado to criminalize marijuana. Ibid. They also
do not challenge the provisions of Colorado law allowing the sale of marijuana for medical purposes.
Colorado has filed an opposition to Nebraska and
Oklahomas motion. Colorado argues that this case
does not warrant an exercise of this Courts original
jurisdiction (Br. 14-24); that Nebraska and Oklahoma
lack Article III standing (Br. 24-30); that no cause of
action exists to enforce the CSAs purported preemptive effect (Br. 30-32); and that the United States is an
indispensable party without which the suit cannot
proceed (Br. 33-34).
DISCUSSION

The motion for leave to file a bill of complaint

should be denied because this is not an appropriate
case for the exercise of this Courts original jurisdiction. Entertaining the type of dispute at issue here
essentially that one States laws make it more likely
that third parties will violate federal and state law in
another Statewould represent a substantial and
unwarranted expansion of this Courts original jurisdiction.
1. Under Article III of the Constitution, this
Courts original jurisdiction extends to all Cases
* * * in which a State shall be Party. U.S. Const.
Art. III, 2, Cl. 2. Since the First Judiciary Act,
Congress has provided by statute that this Court has

9
original and exclusive jurisdiction of all controversies
between two or more States. 28 U.S.C. 1251(a); see
Judiciary Act of 1789, ch. 20, 13, 1 Stat. 80; see also
Stephen M. Shapiro et al., Supreme Court Practice
10.1, at 620-621 (10th ed. 2013) (Supreme Court
Practice). But although that jurisdiction is exclusive,
the Court has interpreted the Constitution and [Section] 1251(a) as making [its] original jurisdiction obligatory only in appropriate cases, Mississippi v.
Louisiana, 506 U.S. 73, 76 (1992) (quoting Illinois v.
City of Milwaukee, 406 U.S. 91, 93 (1972)), and therefore as providing [the Court] with substantial discretion to make case-by-case judgments as to the practical necessity of an original forum in this Court, ibid.
(quoting Texas v. New Mexico, 462 U.S. 554, 570
(1983)).
In exercising that discretion, this Court has said
more than once that its original jurisdiction should be
invoked only sparingly, observing that original
jurisdiction is of so delicate and grave a character
that it was not contemplated that it would be exercised save when the necessity was absolute. Mississippi, 506 U.S. at 76 (quoting Wyoming v. Oklahoma,
502 U.S. 437, 450 (1992), and Louisiana v. Texas, 176
U.S. 1, 15 (1900)). The Court has considered both the
nature of the interest of the complaining State, focusing on the seriousness and dignity of the claim, id. at
77 (internal citations omitted), and whether there
exists an alternative forum in which the issues tendered to the Court may be litigated, even though it
will necessarily be true that no other forum may adjudicate a dispute directly between the States, ibid.
(citation omitted).

10
2. This case does not present the type of dispute
between sovereigns that warrants an exercise of original jurisdiction.
a. This Court has explained that [t]he model case
for invocation of this Courts original jurisdiction is a
dispute between States of such seriousness that it
would amount to casus belli if the States were fully
sovereign. Mississippi, 506 U.S. at 77 (quoting Texas, 462 U.S. at 571 n.18). It is by no means clear that
this case falls in that category. Another sovereigns
adoption of a licensing scheme that permits certain
conduct within that other sovereigns territory would
not ordinarily amount to casus belli, at least where, as
here, the complaining sovereign retains its full authority to prohibit the same conduct within its own territory and thus to address there the consequences of the
other sovereigns different regulatory choice. This is
not a case, for example, in which another State has
directed or affirmatively authorized the generation of
pollution that by operation of natural forces enters
and causes injury in the complaining States territory
that it is powerless to prohibit. Cf. Missouri v. Illinois, 180 U.S. 208, 241 (1901); pp. 11-12, infra.
b. In many of the instances in which this Court has
exercised its original jurisdiction over a controversy
between States, the disputed questions sound[ed] in
sovereignty and property, such as those between
states in controversies concerning boundaries, and the
manner of use of the waters of interstate lakes and
rivers. Supreme Court Practice 10.2, at 622 (citing
cases). The Court has also exercised original jurisdiction in cases sounding in contract, such as suits by
one state to enforce bonds or other financial obliga-

11
tions of another state or to construe and enforce an
interstate compact. Id. 10.2, at 624.
This Court has confronted more challenging jurisdictional issues in cases in which a State asserts that
another States regulatory actions have inflicted an
economic injury on the plaintiff State or has put the
health or safety of its citizens at risk. In those cases,
the Court has drawn a distinction between claims that
the defendant State has itself inflicted an injury on
the plaintiff State and claims that the defendant
States actions have merely permitted other persons
to inflict such an injury.
Thus, this Court has exercised original jurisdiction
over claims that an agent of the defendant State was
inflicting an environmental harm on the plaintiff
Stateclaims that resemble common-law nuisance
actions. See, e.g., New York v. New Jersey, 256 U.S.
296, 298 (1921); Missouri, 180 U.S. at 240-242. The
Court has also exercised original jurisdiction over
claims that the defendant State took regulatory action
that targeted the plaintiff State or its citizens and of
its own force directly inflicted injuries on them. For
example, in Pennsylvania v. West Virginia, 262 U.S.
553 (1923), the Court considered whether West Virginia had unlawfully curtail[ed] or cut off the supply
of natural gas carried from its territory to neighboring States. Id. at 581, 591-593. Similarly, in Maryland v. Louisiana, 451 U.S. 725 (1981), the Court
exercised jurisdiction over a challenge under the
Commerce Clause and the Natural Gas Act to a Louisiana tax on natural gas, the incidence of which fell on
both the plaintiff States and a wide swath of their
populations. See id. at 735-745; see also Wyoming,
502 U.S. at 448, 450-454 (exercising jurisdiction over

12
challenge to Oklahoma statute effectively requiring instate utilities to purchase less coal from Wyoming
mines, which directly affect[ed] Wyomings ability to
collect [certain] tax revenues).
In contrast, where a State has alleged that another
State permittedbut did not direct or approvethe
injurious actions of other parties, this Court has declined to exercise original jurisdiction. The foundational decision is Louisiana v. Texas. In that case,
Louisiana alleged that Texass health officer, under
the pretext of implementing Texass quarantine laws,
had imposed a total embargo on commerce with New
Orleans designed to benefit Texas commercial interests, in violation of the Commerce Clause. See 176
U.S. at 4-5, 8-10 (Statement of the Case). Louisiana
claimed that Texass Governor permit[ted] these
rules and regulations to stand and be enforced, although he ha[d] the power to modify or change them.
Id. at 22. After an extensive review of the historical
origins of this Courts original jurisdiction, id. at 1316, the Court held that it lacked jurisdiction over the
suit, id. at 22-23. The Court explained that a prerequisite for the exercise of its exclusive original jurisdiction was that the controversy to be determined
is a controversy arising directly between the State of
Louisiana and the State of Texas. Id. at 16 (emphasis
added); see id. at 18. The Court concluded that, despite Louisianas allegation that Texass governor had
unlawfully declined to override the regulations promulgated by the health officer, see id. at 5 (quoting bill
of complaint), Louisiana had not alleged facts which
show that the State of Texas has so authorized or
confirmed the alleged action of her health officer as to
make it her own, or from which it necessarily follows

13
that the two States are in controversy within the
meaning of the Constitution, id. at 22-23 (emphasis
added). Accordingly, there was no direct issue between the States, id. at 18, because the action complained of was not state action, id. at 22.
Thus, where the plaintiff State does not allege that
the defendant State has confirmed or authorized the
injury-inflicting action, there does not exist a controversy between the States appropriate for initial resolution under this Courts exclusive original jurisdiction. The Court emphasized that principle the Term
following Louisiana v. Texas, in a case in which it
exercised jurisdiction over a suit by Missouri, against
Illinois and a sanitation district acting as an agent of
Illinois, for polluting the Mississippi River. See Missouri v. Illinois, 180 U.S. at 242. The Court distinguished Louisiana v. Texas on the ground that the
existence and operations of the Illinois sanitation
district were wholly within the control of the state,
insofar as the district was an agency of the state to
do the very things which * * * will result in the
mischief to be apprehended. Ibid.
This Court has continued to enforce the directinjury requirement, which substantially overlaps with
the Article III standing requirement that the injury
be fairly traceable to the defendants actions (see pp.
16-17, infra). As the Court explained in Pennsylvania
v. New Jersey, 426 U.S. 660 (1976) (per curiam), [i]t
has long been the rule that in order to engage this
Courts original jurisdiction, a plaintiff State must
first demonstrate that the injury for which it seeks
redress was directly caused by the actions of another
State, and that [t]o constitute such a [justiciable]
controversy, it must appear that the complaining

14
State has suffered a wrong through the action of the
other State, furnishing ground for judicial redress.
Id. at 663 (brackets in original) (quoting Massachusetts v. Missouri, 308 U.S. 1, 15 (1939)). In that case,
the plaintiff States alleged that illegal taxes imposed
on their citizens by neighboring States had injured the
plaintiff States fiscs because they gave tax credits to
their own citizens for out-of-state taxes. See id. at
661-663. The Court held, however, that the plaintiff
States alleged decline in tax revenue was not inflicted
by the other States tax laws. Rather, the loss was
self-inflicted in the sense that it was caused by the
plaintiff States own voluntary choice to award tax
credits on the basis of the other sovereigns laws. Id.
at 664.
This case does not satisfy the direct-injury requirement. Nebraska and Oklahoma essentially contend that Colorados authorization of licensed intrastate marijuana production and distribution increases
the likelihood that third parties will commit criminal
offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado
into those States. Compl. 54-65. But they do not
allege that Colorado has directed or authorized any
individual to transport marijuana into their territories
in violation of their laws. Nor would any such allegation be plausible.
Nebraska and Oklahoma have therefore not sufficiently alleged that Colorado has inflicted the sort of
direct injury to their sovereign interests warranting
an exercise of original jurisdiction. At most, they have
alleged that third-party lawbreakers are inflicting
those injuries, and that Colorados legal regime makes
it easier for them to do so. But that is a far less direct

15
connection between state action and the alleged injury
than even the connections that this Court found insufficient in Louisiana v. Texas and Pennsylvania v.
New Jersey. See pp. 12-14, supra.
c. Applying the direct-injury requirement in this
context reflects a sound limiting principle on the exercise of this Courts original jurisdiction.
i. The premise of Nebraska and Oklahomas
preemption argument is that Colorados regulatory
regime stands as an obstacle to the CSAs objective of
eliminating the interstate market in marijuana. But
that sort of allegation could be made in many cases:
One State could argue that Congress sought to displace another States law because of a desire for a
uniform national rule or a concern that one States
requirements that differed from federal requirements
would cause private persons to take actions that would
adversely affect the citizens or interests of other
States.
For example, Congress has preempted certain
state and local laws relating to the trucking industry,
49 U.S.C. 14501(c)(1), after finding that the regulation of intrastate transportation of property by the
States ha[d] * * * impeded the free flow of trade,
traffic, and transportation of interstate commerce
and placed an unreasonable cost on the American
consumers. Federal Aviation Administration Authorization Act of 1994, Pub. L. No. 103-305, Tit. VI,
601(a)(1), 108 Stat. 1605. Under plaintiffs broad
view of the appropriate exercise of this Courts original jurisdiction, a State arguably could file an original
action to enjoin another States law as preempted
under that provision so long as it alleged that the law
would prompt trucking companies to change prices or

16
routes in a way that would be harmful to the plaintiff
States economy or that required the State to expend
additional resources. Similar arguments could be
made under numerous other preemption provisions
and doctrines as well. 6
Such a broad invitation to invoke this Courts original jurisdiction to resolve myriad preemption questions would not comport with the Courts traditional
insistence that original jurisdiction be exercised only
sparingly. Mississippi, 506 U.S. at 76 (citation
omitted). And it could well pave the way for putting
this Court into a quandary whereby it must opt
either to pick and choose arbitrarily among similarly
situated litigants to preserve the Courts ability to
attend to its appellate docket or to devote truly
enormous portions of the Courts energies to such
matters. Ohio v. Wyandotte Chems. Corp., 401 U.S.
493, 504 (1971).
ii. The direct-injury requirement also averts difficult threshold questions that would arise in these
types of disputes. For example, this Court has held
that an injury is not fairly traceable to a defendants
conduct, and thus does not support Article III standing, when it results from the independent action of
6

Of course, certain preemption questions may appropriately be

resolved under this Courts original jurisdiction. Where a substantial and serious injury to another State or its citizens is the
direct result of an allegedly preempted law, such as where the
defendant State has imposed a tax that is clearly intended to be
passed on to consumers in other States, the direct injury requirement is met. Maryland, 451 U.S. at 736, 739. But that narrow category of cases does not support the exercise of original
jurisdiction whenever an assertedly preempted state law bears
only an indirect causal relation to the complaining States alleged
injuries.

17
some third party not before the court. Allen v.
Wright, 468 U.S. 737, 757 (1984) (quoting Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. 26, 42
(1976)). That typically would be so when the asserted
claim is that one States law makes it more likely that
third parties will engage in conduct in another States
territory that is detrimental to its sovereign interestsalbeit conduct that the other State can continue
to prohibit within its territory. If standing were upheld in that circumstance, States could challenge any
number of laws enacted by neighboring Statesfor
example, licensing laws for firearms that are unlawful
in the plaintiff Stateson the theory that the laws
make it more likely that third parties will enter the
plaintiff States territory and violate their more restrictive regimes.
This case exemplifies the difficult threshold questions that could arise. Plaintiffs do not claim that the
CSA requires Colorado to prohibit the sale or possession of marijuana (Br. 15), and Amendment 64 contains a severability clause ( 8). If plaintiffs were to
prevail, therefore, the result might be that Colorados
regulatory regime would be enjoined but the sale and
possession of marijuana would still be lawful under
Colorados laws. Plaintiffs standing argument therefore appears to rest on the premise that Colorados
scheme, by assertedly condoning the intrastate manufacture, distribution, and possession of an illegal
drug, Br. 12, gives rise to greater harms than would
a regime of legalization with no regulation. Even if
that proposition could meet the bare plausibility requirement at this stage in the proceedings, standing
could ultimately lie under Article III only on the basis
of predictions about the probable reaction of numer-

18
ous third parties to a Colorado regime of legalization
without regulation and their subsequent conduct in
Nebraska and Oklahoma.
iii. Absent the direct-injury requirement, this
Court would also face novel questions about the types
of interests asserted by a plaintiff State that can support original jurisdiction. This Court has generally
held that mere injury to a States citizens is insufficient, but that a State may invoke its interest as
parens patriae * * * in original actions where the
injury alleged affects the general population of a State
in a substantial way. Maryland, 451 U.S. at 737.
That standard can be difficult to apply in some cases.
But at least when a defendant State itself directly
inflicts the alleged injury (for example, through a tax,
see note 6, supra), the Court is immediately presented
with the full range of injurious conduct and can make
a judgment about whether that conduct affects the
plaintiff States general population in a substantial
way. Where the claim is that many private parties
could be induced by the defendant States action to
inflict injuries on the general population in the territory of the plaintiff State, however, the analysis could
prove extraordinarily complex and could require substantial factual developmentif such a suit would be
properly cognizable at all.
A plaintiff State may also allege, as here, that the
third-party conduct imposes a burden on their governmental resources. But that claim could also pose
difficult factual and other questions. Consistent with
the respect ordinarily afforded co-sovereigns in our
constitutional system, this Courts decisions definitely establish that not every matter that may warrant
resort to equity by one person against another would

19
justify an interference by this Court with the action of
a State. Alabama v. Arizona, 291 U.S. 286, 292
(1934). Rather, only a threatened invasion of rights
* * * of serious magnitude will justify the Courts
exercise [of] its extraordinary power under the Constitution to control the conduct of one State at the suit
of another. New York, 256 U.S. at 309. There would
be a substantial question whether the actions of third
parties that lead a neighboring State to expend more
resources on law-enforcement efforts within its own
territory could meet that demanding standard.
Here, for instance, Nebraska and Oklahoma allege
that their law enforcement [officers] encounter[]
marijuana on a regular basis as part of day-to-day
duties when they make routine stops of individuals
who possess marijuana purchased in Colorado which,
at the time of purchase, complied with Amendment
64. Compl. 55-57, 62. But Amendment 64 permits
individuals to possess only one ounce or less of marijuana, Amendment 64 3(a), not quantities that
would support, for example, large-scale distribution
operations. It is not obvious, at least without further
factual development of a potentially sprawling and
uncertain nature, that the class of lawbreakers that
Nebraska and Oklahoma have identifiedi.e., those
possessing the small quantities of marijuana permitted by Colorados scheme who then cross into their
territories before consuming itcause them to suffer
great loss or any serious injury in terms of lawenforcement funding or other expenditures. Alabama, 291 U.S. at 292 (1934).
iv. Finally, exercising jurisdiction over suits like
this one would raise novel questions about whether
Nebraska and Oklahoma have invoked any viable

20
cause of action. Most original suits call for the Court
to fashion a form of federal common law to resolve
water or boundary disputes between States, see Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363, 375
(1977), or invoke the equivalent of common-law causes
of action for violations of a contract, e.g., Kansas v.
Nebraska, 135 S. Ct. 1042, 1052-1053 (2015). This suit,
however, urges preemption on the basis of a federal
statute. Yet the Supremacy Clause * * * does not
create a cause of action, Armstrong v. Exceptional
Child Ctr., Inc., 135 S. Ct. 1378, 1383 (2015), and neither does the CSA. There also is no basis for concluding that, even if plaintiffs have invoked a cognizable
cause of action, they are within any zone of interests
protected by the provisions of the CSA that prohibit
the sale and possession of controlled substances and
that allegedly preempt Amendment 64.
Nor does a suit simply to enjoin another States
laws as preempted necessarily resemble a traditional
suit in equity. While it is possible that some original
actions challenging another States laws as preempted
could be analogized to a traditional equitable action to
assert a defense that would be available in an action at
law brought by the defendant, see Douglas v. Independent Living Ctr., 132 S. Ct. 1204, 1213 (2012)
(Roberts, C.J., dissenting), Nebraska and Oklahoma
compare this suit to a common-law nuisance action.
See Br. 12-15. Even if that analogy were otherwise
apt (but see p. 10, supra), such actions required that
the defendant be the legal cause of the injury, i.e.,
that the defendants actions proximately cause the
plaintiffs injury. 4 Restatement (Second) of Torts
822 & cmt. e. (1979); see 2 Restatement (Second) of
Torts 431 (1965). It is not clear that such a require-

21
ment could be met where the injuries result most
immediately from the illegal actions of third parties
within Nebraska and Oklahoma. Cf. id. 448 (discussing circumstances in which illegal act of third
party is a superseding cause of harm).
3. a. The Courts exercise of original jurisdiction is
also unwarranted in this case because the preemption
issue could be raised in a district-court action. As
Nebraska and Oklahoma acknowledge (Br. 9), the
issue presented to this Court in their complaint
could conceivably be resolved in a suit brought by
non-sovereign parties in a district court. See Pls
Reply Br. 3-4. Indeed, two suits raising the issue are
currently pending in the District of Colorado. See
Safe Streets Alliance v. Alternative Holistic Healing,
LLC, No. 15-cv-349 (D. Colo. filed Feb. 19, 2015);
Smith v. Hickenlooper, No. 15-cv-462 (D. Colo. filed
Mar. 5, 2015). This Court recognized in Arizona v.
New Mexico, 425 U.S. 794 (1976) (per curiam), that
the pendency of actions raising the same legal issue
can militate against an exercise of original jurisdiction. Id. at 796-798; see Mississippi, 506 U.S. at 7677. Although the individual plaintiffs in the pending
suits are not state officials, they have law-enforcement
interests similar to those asserted by Nebraska and
Oklahoma. Cf. Maryland, 451 U.S. at 740-741. Moreover, Nebraska and Oklahoma do not dispute that
they could file suit in their own names against an
appropriate Colorado state official in a district court.
Although such a suit might be dismissed at the
threshold for failure to establish Article III standing
or to identify a viable cause of action, the same questions arise here. See pp. 16-21, supra.

22
b. The nature of the merits question underlying
plaintiffs request for declaratory and injunctive relief
also disfavors review by this Court in the first instance. Even when this Court, speaking broadly, has
jurisdiction over an original action, the Court may
forbear proceeding until all the facts are before [the
Court] on the evidence. Kansas v. Colorado, 185
U.S. 125, 145-147 (1902). Forbearance is particularly
appropriate in original cases involving intricate questions of grave and far-reaching importance. Id. at
145, 147. In this case, the merits of the preemption
issue that Nebraska and Oklahoma raise could conceivably turn on factual determinations that would be
better resolved through actions initiated in district
courts and ultimately subject to this Courts certiorari
jurisdiction after appellate review.
The CSA does not preempt a State law on the
same subject matter as the CSAs control and enforcement provisions unless there is a positive conflict between federal and state law so that the two
cannot consistently stand together. 21 U.S.C. 903.
Such a positive conflict could be clear on the face of
the state law, or it could become apparent in practice.
Cf. Arizona v. United States, 132 S. Ct. 2492, 25092510 (2012). Here, for example, it is conceivable that
the Court could conclude that whether Colorados
scheme creates a positive conflict with the CSA
ultimately turns on, among other factors, the practical
efficacy of Colorados regulatory system in preventing
or deterring interstate marijuana trafficking. The
Colorado regulatory scheme, however, went into full
effect in its current form only in October 2014. Accordingly, even if it were ultimately determined that
there are no Article III or other threshold barriers to

23
judicial resolution of the preemption question here
(but see pp. 10-21, supra), it would be a prudent exercise of this Courts discretion to decline to take up
that question at this time.
4. The United States is not an indispensable party
to this suit because, if other threshold requirements
were met, complete relief could be awarded Nebraska and Oklahoma without joining the United
States. Cf. Fed. R. Civ. P. 19(a); see California v.
Arizona, 440 U.S. 59, 62 & n.3 (1979). This is not a
case where the relief sought could not be framed
without the adjudication of the superior rights asserted by the United States, or where a partys asserted
right is dependent upon the rights and the exercise of
an authority asserted by the United States [such] that
no final determination of the one can be made without
a determination of the extent of the other. Arizona
v. California, 298 U.S. 558, 571 (1936). There is no
dispute about the United States authority to enforce
the CSA, and the relief requested by Nebraska and
Oklahoma would not require any adjudication of the
rights of the United States or any exercise of authority by the United States.

24
CONCLUSION

For the foregoing reasons, the motion for leave to

file a bill of complaint should be denied.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
BENJAMIN C. MIZER
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JOHN F. BASH
Assistant to the Solicitor
General
DOUGLAS N. LETTER
MARK B. STERN
ALISA B. KLEIN
SONIA K. MCNEIL
Attorneys

DECEMBER 2015